I - CHAPTER 8

1. SPECIFIC PERFORMANCE Reading

• Hanbury & Martin, Modern Equity (Sweet & Maxwell, 2009)

Ch 24
• Pettit, Philip, Equity and the Law of Trust (Oxford University Press, 2009) Ch 28
• Parkinson, Patrick, (ed), The Principles of Equity (LBC Information Services, 1996) Ch 17
• McGhee, Snell’s Equity (Sweet & Maxwell, (2005) Ch 40
• Dal Pont & Chalmers, Equity and Trusts in Australia and New Zealand (LBC Information Services, 2000)
Ch 31

8.1 Definition

A decree of specific performance is an order of the court compelling the defendant personally to do what he has
promised to do. This remedy has been developed as an additional remedy to damages under common law.
Generally it is not given in situations where damages is adequate. Damages are granted where there is breach of
a contract but specific performance may be given based on the existence of a contract, and upon an anticipatory
breach as well as other situations which require the remedy at equity.

See: Hasham v Zenab [1960] AC 316

With this remedy, equity can “treat as done that which ought to be done.“

8.2 Basis for the grant of specific performance

8.2.1 The court’s discretion

See the maxims “Equity acts in personam” and “Equitable remedies are discretionary”. This discretion is exercised
according to settled principles.

Case: Re Scott & Alvarez’s Contract (1895) 2 Ch 603, Per Rigby L.J.

From the very first (when specific performance

 was introduced) it had been treated as a question of
discretion whether it is better to interfere and give a
remedy which the common law knows nothing about
or to leave the parties to their rights in the court of law.

See s 21 Specific Relief Act 1950 (“SRA”)

Cases

• Venkatachalam Chettiar & Ors v Arunasalam Chettiar [1953]

MLJ 234
• Sekamas Sdn Bhd v Lian Seng Co Sdn Bhd [1989] 2 MLJ
155
• Ng Pak Cheong v Global Insurance Co Sdn Bhd [1995] 1
MLJ 64
• Tamplin v James (1880) 15 Ch D 215
• Co-operative Insurance Society Ltd v Argyll Stores (Holdings)
Ltd [1977] 2 WLR 898

8.2.2 Parties who can bring an action for specific performance

(a) Parties to a contract (s 22 (a) & (b) Specific Relief Act 1950.
(b) Action may be brought against any party to the contract (s
26 SRA ) See the exception under s 26(b) – bona fide
purchaser for value without notice.

Case: Ong Chat Pang & Anor v Valliappa Chettiar [1971]

1 MLJ 224

8.3 Contracts that may be specifically performed

(a) A valid enforceable contract where consideration has been

given

Cases

• Abdul Rahim bin Syed Mohd v Ramakrishnan

Kandasamy [1996] 3 MLJ 385
• Wisma Sime Darby Sdn Bhd v Wilson Parking (M)
Sdn Bhd [1996] 2 MLJ 81
• Sinniah a/l Pampayan v Muthuvelu Pillai a/l
Palanichamy Pillai [1997] 1 MLJ 403

See: S 30 SRA 1950

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(b) Contracts for sale of shares in a private limited company not
available in the open market. S11 (1) (b) SRA .

Cases

• Gan Realty Sdn Bhd & Ors v Nicholos & Ors [1969]
2 MLJ 110
• Duncuft v Alvrecht (1841) 12 Sim 189

Basis: No measurement to ascertain damages

(c) Contracts for sale of chattels of especial value

Cases

• Falcke v Gray (1859 4 Drew 651; (Chinese vase)

• Cohen v Roche (1927) 1 KB 169

(d) Inadequacy of damages or difficult to ascertain

Case: Sky Petroleum v VIP Petroleum Ltd [1976] 1 WLR

576

Courts had a discretion to order specific performance of a

contract to sell non-specific chattels in case where the
remedy of damages would be inadequate (in the instant
case - sale of petrol where there is no prospect of finding
alternative source of supply).

(e) Contracts sale of land : presumption of specific performance

See s 11(2) SRA 1950

Cases

• Zaibun Sa bte Syed Ahmad v Loh Koon May & Anot

[1982] 2 MLJ 92
• Ho Ah Kim & Ors v Paya Trubong Estate Sdn Bhd
[1987] 1 MLJ 143
• Tan Ah Chin & Sons Sdn Bhd v Ooi Bee Tat & Anor
•
[1993] 3 MLJ 633
• Kho Ah Soon v Ooi Kar Seng (Properties) Sdn Bhd
[1995] 3 MLJ 293

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8.4 Non-specifically enforceable contracts

(a) Contracts for sale of personal property which do not fall under 8.3(1) - (3) above.

See: s 20(1)(a) & (b) SRA

Case: Cuddee v Rutter (1720) 1 P. WM 570, per Lord Parker LC

[A] court of equity ought not to execute any of these contracts but leave them to law, where the
party is to recover damages, and with the money may if he pleases buy the quantity of stock agreed
to be transferred to him, for there can be no difference between one man’s stock and another’s.

(b) Where monetary damages is adequate

Case: Sekemas Sdn Bhd v Lian Seng Co. Sdn Bhd [1989]
2 MLJ 155

(c) Contracts for personal services

See: S 20(1)(b) SRA 1950

Per Fry LJ in De Francesco v Barnum (No. 2) (1890) 45 Ch

D 430

The Courts are bound to be jealous lest they should turn

contracts of service into contracts of slavery.

See also:
• Sivaperuman v Heah Seok Yeong Realty Sdn Bhd
[1979] 1 MLJ 150
• Hill v C.A. Parsons & Co. Ltd [1972] Ch 305 Specific performance for contracts of service in
exceptional cases.
• Lumley v Wagner (1852) 1 De GM & G 604
(a singer was prevented from breaching her contract).
 (d) Contracts requiring the court’s supervisión

See: S 20 (1)(b) SRA 1950

Cases

• Ryan v Mutual Tontine Westminster Chambers

Association [1893] 1 Ch 116
• Lee Sau Kong v Leow Cheng Chiang [1961] MLJ
17
• Blackett v Bates (1865) 1 Ch App 117
• Joseph v National Magazines Co (1959) 1 Ch 14
(contract to publish incomplete manuscript unless
completed at the time of the contract.)
• Barrow v Chappell & Co Ltd [1976] RPC 355
• Carpenters Estates Ltd v Davies (1940) Ch 160
• Ooi Hock Lai v Lee Kok Leong [1990] 1 CLJ 951

(e) Construction contracts

See: A.G. Colchester Corporation (1955) 2 QB 207

Exceptions in Wolverhampton Corporation v Emmons [1901]

1 KB 515:

i) The building work, of which it seeks to enforce the

performance, is defined – the particulars of the work
are so far definitely ascertained that the court can
sufficiently can see the exact nature of the work;
ii) Plaintiff has a substantial interest in having the
contract performed - and cannot be adequately
compensated by damages;
iii) Defendant has obtained possession of the land on
which the work is contracted.

(f) Terms of the contract cannot be reasonably ascertained.

Case: Lin Nyuk Chan v Wong Sz Tsin [1964] MLJ 200

8.5 Damages may be given in lieu of specific performance or in

addition to specific performance.

Section 17 SRA 1950

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8.6 Defences to specific performance

8.6.1 Defences arising from the nature of the contract

(a) No consideration - s 30 SRA 1950.

(b) Lack of mutuality

It is a general principle of equity to interpose only where the

remedy is mutual ie. it can be enforced against either party.

Case: Flight v Boland (1828) 4 Russ 298

(c) The contract must be specifically enforceable in its entirety

but where the contract may be severed into distinct separate
contracts, then specific performance may be decreed on the
one part, independent of the others.

Case: Odessa Tramways Co v Mendell (1878)8 Ch D 235,

CA

(d) Defective contracts

(e) Impossibility of performance - eg. where the land or object
of the contract has been transferred to a third party
(f) Defendant is required to do an illegal or immoral act

Cases

• Palaniappa Chettiar v Arunaselam Chettiar

• Suntuso Jacob v Kong Kiao Ming & Anor [1986] 2
MLJ 170
• Sia Siew Hong & Ors v Lim Gim Chian [1995] 3 MLJ
141

8.6.2 Defences against specific performance arising from the conduct

of the parties

(a) Fraud or unfairness

• Kan Tak Fee v Au Phin Yean [1934] MLJ 94

(Only the party who is not at fault can use fraud as
a defence).
• Mahomed Salleh v Nacodah Merican (1889) 4 Ky
463

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 • Kok Ek Chooi v Cheah Soon Neoh & Anor [1982] 1
MLJ 219
(Plaintiff must come with clean hands is ready to fulfil
his obligation towards a third party)

(b) Misrepresentation by the plaintiff - s. 22 (b) SRA 1950

(c) Mistake ss. 21 & 22 SRA 1950
The mistake must be so fundamental that it affects the whole
basis of the contract so as to make it void.

Cases

• Webster v Cecil (1861) 30 Beav 62

• Tamplin v James (1880) 15 Ch D 215, CA

(d) Misdescription of subject matter

(i) Cases where the misdescription is so substantial

(so that the purchaser does not get what he wanted
but for the description) that it cannot be adequately
remedied by damages.
(ii) Where misdescription is insubstantial – the vendor
might be able to enforce though with abatement of
price by way of compensation.

(f) Laches and acquiescence - s. 47 SRA 1950

Maxim: “Delay defeats equity”.

Cases

• Goh Keng How v Raja Zainal Abidin bin Raja Hussin

• Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221
• Tan Ah Kiam v Haji Hasnan [1962] MLJ 400
• Himatsing & Co v Joitaram [1970] 2 MLJ 246
• Ignatius v Bell (1913) 2 FMSLR 115
• Williams v Greatex (1957)1 WLR 31

In a contract for sale of land which stipulates that “time is the

essence” the court of equity will not exercise its discretion
to alter the terms between the parties.

Case: Union Eagle Ltd V Golden Achievement Ltd [1997] 1

HKC 173 - followed Viscount Haldane’s decision in
Steedman v Drinkle [1916] 1 AC 275 at 279

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Courts of Equity, which look at the substance as
distinguished from the letter of agreements, no doubt
exercise an extensive jurisdiction which enables them
to decree specific performance in cases where justice
required it, even though literal terms of stipulations as
to time have not been observed. But they never
exercise this jurisdiction where the parties have
expressly intimated in their agreement that it is not to
apply by providing that time is to be of the essence of
their bargain.

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